Between 1980 and today, the US federal system has struggled to deal with the challenges of sentencing the relatively small number of defendants I shall loosely call “high-end” white collar offenders. After briefly sketching out this story, I explore the lessons, with particular attention to the interaction between institutional and procedural structures and theoretical white collar sanctioning goals. While the precise nature of these institutional and procedural structures is jurisdiction specific, I hope to highlight the need to consider such structures when devising an optimal (or, even second-best) sentencing regime.

In the law enforcement literature there is a presumption – supported by some empirical evidence – that criminals are more responsive to increases in the certainty than the severity of punishment. This, under a general set of assumptions, implies that criminals are risk seeking. We show that this implication is no longer valid when forfeiture of illegal gains is considered. Therefore, when drawing inferences concerning offenders’ risk attitudes based on their responses to various punishment schemes, special attention must be paid to whether and to what extent offenders’ illegal gains can be forfeited.

Over the past decade, federal sentencing issues concerning child pornography have produced considerable legal debate, much of it focused on the application of federal sentencing guidelines as set forth by the United States Sentencing Commission (U.S.S.C.). Many judges have opined that the factors used to calculate the adjusted offense level for some child pornography offenses may be out of date, impracticable, and/or in conflict with 18 U.S.C. 3553(a), which requires, among other things, “just punishments.” Particular concerns have been expressed that strict application of the sentencing guidelines can produce results in which possessors of child pornography (i.e. those who commit less serious child pornography offenses as compared to producers or distributers) may be sentenced near the statutory maximum. This has caused some judges to inquire into the rationality of guidelines which they argue place even the less culpable offenders at the level of punishment reserved for the most serious of offenders.

The conference, sponsored by the Robina Institute of Criminal Law and Justice at the University of Minnesota Law School, will be held April 26. Information on the program and registration can be found here.

The American criminal justice system is acknowledged as a model for criminal procedure worldwide. The death penalty, however, is one of its biggest flaws. How did we end up with a system that both proponents and opponents of the death penalty would agree has become dysfunctional? It is the thesis of this book that the United States Supreme Court, through its inconsistent and often incoherent jurisprudence, bears primary responsibility. In 1976, the Court began an endeavor to limit the death penalty to the worst offenders. Despite the Court's attempts to limit the death penalty, the manner in which it is meted out is no fairer now than when the Court first began this endeavor. The death penalty continues to be fraught with arbitrariness and racial discrimination. There remains no logical way to separate the cases of those who end up on death row from those who do not. Using case studies, the book examines issues such as jury selection, ineffective assistance of counsel, the role of race, claims of innocence and international treaties and their lack of impact on capital punishment.

This essay challenges the easy (because partially true) assumption that there is nothing new under the sun in death penalty discourse. Rather, debates about capital punishment have been as much discontinuous as continuous over the past century. Some arguments that were made in the past have been entirely discredited or even forgotten today, while our current debates contain arguments that would be utterly foreign to denizens of earlier decades, despite the fact that they cared deeply about the issue of capital punishment in their own times. This essay describes two “lost” arguments from the past in favor of retention of capital punishment: the contention that capital punishment was a necessary antidote to extrajudicial lynchings and the defense of capital punishment as part of a larger program of eugenics endorsed by many progressive leaders of the late nineteenth and early twentieth centuries. The essay also explores two “new” abolitionist arguments from the present: the fiscal argument about the greater cost of capital punishment even in comparison to life imprisonment and the concerns raised about the suffering of those awaiting execution for lengthy periods (the so-called “Death Row Phenomenon”). Death penalty discourse has not been as static as is often assumed, and the debates of each era provide a window onto both the nature of the actual practice of the death penalty in different times and the broader social contexts in which that practice has operated.

Wood v. Milyard: (1) Whether an appellate court has the authority to raise sua sponte a 28 U.S.C. § 2244(d) statute of limitations defense; and (2) whether the state’s declaration before the district court that it “will not challenge, but [is] not conceding, the timeliness of Wood’s habeas petition,” amounts to a deliberate waiver of any statute of limitations defense the state may have had.

Tuesday

Mohamad v. Rajoub: Whether the Torture Victim Protection Act of 1991 permits actions against defendants that are not natural persons.